Clients and Conflicts in Probate

Over the next few articles, we’ll take a step back and look at some ethical issues that can arise when dealing with probate. We’ll only look at a few and then take some time to figure out how to handle such situations. In our first article, we’ll look at clients, who they are and how to avoid potential conflicts. If that sounds appealing, please continue reading. We hope it is both informative

Understanding the Attorney Roles

In most cases, the executor (or personal representative) of an estate believes that the attorney representing the estate is their own. However, as previously stated, this is an incorrect belief. In the majority of cases, the attorney represents only the estate. This does not include the beneficiaries.

The probate attorney, on the other hand, has a fiduciary duty to any estate beneficiaries. In fact, a will can be declared invalid due to “undue influence” if a beneficiary has a too-close relationship with an estate’s attorney! As you can see, it’s best to keep things strictly professional.

Conflicts of Interest in Probate

Any attorney who represents both the deceased and any beneficiaries may be in violation of conflict of interest rules. Please keep in mind that while an attorney may represent executors individually, there must be no hint of a potential conflict of interest.

A trustee may also have a conflict of interest if they are the parent of a remainderman who is their own child, which is especially true if the child is an infant. In the event of a conflict of interest, appointing a Guardian for the child would be far more beneficial.

Scott Counsel Is Here to Help

“There is certainly a lot to consider when dealing with all manner of things related to estates, rules and regulations, and a host of other things,” says Justin Scott, a probate attorney in New Jersey. And, to be honest, it can be overwhelming at times, and all that information can end up doing more harm than good, making already difficult decisions even more difficult.

If you have any questions about any of these rules, or if you are unsure whether or not there may be a conflict of interest, please come and speak with me or one of my colleagues. We would be happy to explain all of this to you in greater detail and clear up any confusion you may have. We know the road ahead will be difficult enough without adding more obstacles. We want to assist you in avoiding those roadblocks

As you are aware, dealing with the aftermath of a person’s death can be difficult. It would be extremely beneficial to be aware of, and at least have a basic understanding of, the pitfalls and unseen obstacles that can befall someone if they are not cautious, and we hope that this article has shed some light on the situation. Contact us today to speak with our experienced and ethical probate attorneys.

I’ve Got the Power, of Attorney!

Okay, okay, you got me. I apologize for my 80s T.V. reference, but I thought it was rather fitting, as sometimes attorneys can (and do) seem like superheroes. That said, the term Power of Attorney doesn’t necessarily mean that the person you have chosen to trust with your affairs is going to dress up in spandex and spend their nights fighting crime in your name. Although you do have to admit it’d be pretty awesome if they did!

What is a Power of Attorney?

Power of attorney isn’t actually referring to a person at all! Rather, it is a written document that says you have given permission to another adult to tell other people what to do with all of your things since you are unable to do it yourself. This includes things like real property (i.e. land) or even bank accounts, as well as handling all the rest of your financial or legal matters.

It also doesn’t necessarily mean you have to be dead. Generally, it is used when someone is incapacitated by some physical or mental reason and can’t speak for themselves, or do all the things that need to be done. So, in review, the power of attorney allows your spouse, a friend, or a family member (also known as an agent), to act on behalf of you (also known as the principal).

Types of Power of Attorneys

So, okay, power of attorney! That’s fantastic! But you might be confused. You might be asking yourself, “Hey, is there more than one kind of power?” And the answer to that question is indeed a resounding YES! There are in fact two types of power of attorney, and we’ll look at them now.

Limited Power of Attorney

Limited: With limited power of attorney, that means that a person has the authority to do one thing and one thing only (like selling your house, for example). If you can’t do it yourself, you’d definitely want to have someone you can trust help you. If that’s the case, then the “Limited” option is probably the best choice for you.

General Power of Attorney

General: According to Justin Scott, a New Jersey attorney, “The general power of attorney allows the representative assigned by the principal the ability and authority to act in any way necessary on anything and everything, should the principal become mentally incompetent or otherwise disabled.” It’s important to note that these general powers of attorney usually have a provision that will allow the representative (or agent) to act even in the event that the principal becomes disabled. However, it automatically ends when the principal person dies.

So now you know a little bit more about power of attorney—who it is and what it does. Hopefully now, if you weren’t before, you will be able to feel at least a little more confident when it comes to matters like these. I know I am, and I hope that you are too!

Trusts, and the Probate Process

It is likely that you’ve heard of a trust. In case you’re unsure what it is, though, a trust is simply this: A trust is an arrangement where things like property, money, etc. are held in safekeeping. What kind of trust should you set up if you’re thinking about it? In this article, we’ll answer that question! Let’s take a look.

Why Do I Need A Trust?

Trusts created under a will can be set up for just about anyone: minor children, adults, or any other person whom you have designated as a beneficiary. It can also be done for a multitude of reasons like tax savings, giving the beneficiary the ability to handle finances or if you have a particular way you would like to distribute all of your assets.

Why Do I Need A Trust?

A trust that is created under a paragraph in your will serves to appoint a trustee. The appointed person then both administers and invests the funds for the trust, and they also pay income and/or principal from the trust following the terms and guidelines that are named in the will.

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

Contact Scott Counsel to Learn More About Wills and Trusts

So as you can see, there are a couple of very good reasons to have a will and trust. Of course, this may not be everything involved in the process; it wasn’t meant to be. Rather it is a basic overview of the steps, in order that you may have a general idea of what to expect if you’re thinking of setting up a will and trust for your loved ones. As Mr. Scott said, it can be difficult to know whether you’ve covered all your bases. And while it’s true that you may not get them all, at least by having both, you can rest easy knowing you’ve covered most of them. And most of them are better than none.

What Happens Without a Will?

I’ll let you in on a little secret… I have a lot of stuff. I bet you probably do too, right? It can be kind of scary trying to figure out what will happen to it after you’re gone. You might be even more scared if you don’t yet have a will or just simply don’t want to make one. In either case, I have some information that you just might find helpful, and then I can feel good about myself again. So here we go!

What To Do if There is No Will?

In the great state of New Jersey, if you have no idea what to do and you have no will, the law will come to bat for you and decide how to divide up all those things you left behind. For now, though, let’s just look at the stuff that’s left in your name alone. There are seven ways this can go, and they are as follows:

  • If you die and leave behind your spouse and a child (from that same marriage), your spouse gets EVERYTHING. (This does not include stepchildren or children from a previous marriage).
  • If you die and leave behind a spouse and child from a previous marriage, that spouse gets 25% of your estate, but no less than $50,000 or more than $200,000, plus one-half of any balance on the estate. Your kids get that balance equally, while grandchildren take the share of the deceased parent.
  • Say you die and leave behind a spouse, child(ren), and a stepchild or children, the spouse gets the first 25%. No less than $50,000 or more than $200,000, plus three-fourths of any estate balance. Again, children divide it equally and grandchildren take the share of the deceased parent.
  • If you die and have a spouse but no children, but you have your parents, the deal is the same as before, only this time your parents split the balance of the estate equally between themselves.
  • If you die and you have a child or children but no spouse, your kids inherit equally, while grandchildren will inherit the share of the deceased parent.
  • If you die and you don’t have any of those, but you have parents, your parents get it all. If you don’t have parents, your siblings will inherit equally. For nieces and nephews, it is the same as above: they inherit what their parents left behind.
  • Finally, when no immediate family is in the picture, your property can go to all those to whom you are distantly related to (like grandparents, aunts, uncles, cousins, etc.). Or, it can even be taken by the State if all else fails.

Contact Scott Counsel Today

So here’s a quick glimpse for you at what happens to your things after you’re gone. New Jersey estate planning attorney Justin Scott is quick to assure us. “We know you have a lot of memories and all those things mean a lot to you,” he says, “so please rest assured that we will do everything we can to make sure those precious memories are very well taken care of. Contact New Jersey Estate Planning attorney, Justin Scott, to get started on your will.

The Importance of Having a Will

Okay, so, everyone probably already knows what a will is. If you’ve been around long enough, it’s likely you’ve at least heard of one. For those who may not be familiar, let’s talk a little about what a will is and why it’s handy to have one.

What is a Will?

The most basic of basic definitions is this: A will is a piece of paper (or multiple pieces) that tells everybody who gets what when you kick the bucket. If done right, it should name an executor/rix, and also an alternate, just in case the first person doesn’t want to step up. It should name a trustee if a trust is available, and also a Guardian to take care of any minor children.

It should also state that anyone named in it should not be required to post a bond for their position, as well as specific inheritances and determine how the rest of the stuff (including the estate) should be divided up.

How Can I Have a Will?

Now, I know what you’re thinking: Can I have a will? And the good news is yes, you can! Just as long as you’re over the age of eighteen. You just need two people who are at least eighteen too to sign it with you as witnesses. If it’s done right, you shouldn’t have any issues with proving it, as it will become self-proving with the signatures by the same witnesses as well as that of a notary public.

Why Do I Need a Will?

That’s great and all, right? But why do you even need one in the first place? I’m glad you asked! As stated earlier, a will helps people know who gets what from all your piles of stuff. If you don’t have a will, there could be arguments and all sorts of unpleasant things can happen, so it’s better to have one than not. But, it’s even better to have one that is done properly.

After the will is executed, any changes should be made through either a codicil or an entirely new will. Any markings, cross-outs or handwritten changes can leave the Surrogate unable to act and force probate in the Superior Court.

Finally, the personal representative named in the will also have a list of responsibilities. These include:

  • Locating and performing an inventory of all the estate’s assets
  • Paying outstanding debts
  • Filing appropriate inheritance or income tax returns
  • Having necessary paperwork ready for the transferring of property
  • Paying any and all fees
  • Opening and maintaining an estate checking account
  • And finally, disbursing estate funds to beneficiaries and filing refunding bonds and releases, which are documents that show someone received his or her inheritance

According to Justin Scott, a New Jersey estate planning attorney, “death and all that comes with it is a confusing enough time for anyone.” When mourning a loved one, the last thing anyone needs is to be confused by things they don’t necessarily understand or, quite frankly, care about. This is where we step in. We can assist you in figuring things out and, hopefully, alleviate some of your burden.”

Contact our New Jersey Estate Planning Lawyer to Learn More

If you have any questions or concerns about drafting or executing a will in New Jersey, please call Scott Counsel or fill out our contact form. Our New Jersey Wills & Trusts lawyers are here to help guide you along the process to give your family the peace of mind they need.

Why Do You Need A Living Trust And A Will?

Some things in life just go well together: Cereal and milk, peanut butter and jelly, movies and popcorn. But there’s another couple of things that go well together too—living trusts and wills. Now, if you know even a smidge about living trusts and wills, you might think that you would be just fine without a trust if you’ve already got a will—since they’re basically kind of the same thing. The truth is, however, that it’s a good idea indeed to have both if you don’t already.

“But why?” I hear you screaming at your computer screen. “Why do I actually need both?”

Living Trusts Never Include Every Single Thing You Own

The biggest reason why it’s important to have a will is that a living trust only covers all the stuff you’ve listed, in writing, in the trust. And almost no one transfers every single thing they own to the trust. I mean, I guess you could try, but if you’re like me, you have a lot of stuff. Doesn’t it just seem a lot simpler to transfer some of it and not all of it?

Even if you did somehow manage to get all that stuff of yours into a trust, there’s always a chance that you’ll get even more of it before you die, and that stuff isn’t going to be covered by your living trust because you didn’t have it included at the time you made the trust. Make sense?

A Will Can Do Things A Trust Cannot

To explain this in simpler, more cultural terms, think of a Living Trust like Robin and the Will is like Batman. Sure, Robin is great and whatnot. He can do a lot of cool things and he can hold his own, but Batman is on a completely another level. It’s the same thing with Wills and Living Trusts.

For example, if you have minor children, and you want someone to take care of them when either you or your spouse dies, you must use a will. You cannot use a living trust. Also, in a will, you can cancel any debts that you are owed, and that’s another thing that a living trust cannot do.

A Final Word From Justin Scott

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

Social Security, Pension and Veteran Affairs: An Answer to Your Questions

You might be wondering exactly how the probate process deals with social security, pensions, or even Veteran affairs. After all, you’re reading this article, so that means you must at least be curious. If so, and you’ve got questions, congratulations! You’ve come to the right place! In this article, we’ll look at just exactly that, and hopefully give you answers to all those burning questions. So, without further ado, let’s get started!

The Social Security Act

The concept of Social Security can be a confusing one, but it can actually be quite beneficial. What does it do exactly? For one thing, the Social Security Act is able to provide for survivor’s benefits to family members, as well as other benefits to any eligible persons. These benefits can include monthly payments or if preferred, a lump sum death payment.

Who Is Eligible for Veteran Benefits?

If anyone who may be entitled to benefits dies, a member of the family or interested party should contact the local Social Security office for any further information.

Any widows, minor children, or other family members may be eligible for benefits, if applicable. Anyone interested in finding out more about this should contact the appropriate pension company official for further information regarding this matter.

If someone dies and they were a Veteran, you should contact the Veteran’s Administration if you are curious about burial or death benefit information.

A Final Word From Justin Scott

Hopefully, this information will be able to shed some more light on the situation. If you’re in New Jersey, you can contact Scott Counsel in Cherry Hill for more help or information.

Justin Scott, an attorney for the practice, says, “We know you have questions, and we are here to help point you in the right direction to find answers, as well as to help clear any hurdles you may come across. We’re here to help, and I or any of our other experienced attorneys will be here to walk this road with you every step of the way. That’s what we believe you not only need at a time like this, but it’s what you deserve.”

How To Settle An Estate (Part 2)

In “How to Settle an Estate (part 1), we took a closer look at six of the necessary steps in the process of settling an estate. If you’d like to check it out again, or in case you missed it the first time, you can find part 1 (here). When you’re ready, come back here and check out part 2 below, where we’ll cover the last six steps in the process.

If you’re ready, let’s continue!

Communicate With Beneficiaries

If the estate goes through probate, you’re going to have to send some very specific notices to some very specific people—beneficiaries. The court, or your lawyer, can help you in this regard. And regardless of whether or not any court proceedings take place, it’s not a bad idea to be in consistent communication with any and all beneficiaries.

It’s important that they be kept apprised of goings-on, as they can tend to grow suspicious and unhappy if they don’t hear anything for long periods of time. Even if nothing is really happening, let them know that you’re still working, things are still moving forward, and they’re still going to get their inheritance. If you aren’t open or honest with them, they can go to court and try to have you kicked out!

Take Care of Any Assets

This is one of the most important jobs of the executor. You want to make sure that the estate is well-maintained, small valuables are looked after and secure, and bigger items remain insured. Remember that your only goal here is to not lose money; it isn’t to reap any huge benefits.

Collect any Money Owed to The Estate

This step will probably take a lot of time and a lot of paperwork, but it’s generally pretty easy. You can also place any money you collect into the estate’s bank account.

Pay Any Bills Owed

As long as there’s money in the estate to pay them, it’s your responsibility to make sure that any and all legitimate bills get paid on time. Rest assured that you don’t have to pay anything out of your own money. If you don’t think there’s going to be enough, get some help from the court or an attorney on what should take priority!

Deal With any Taxes

If the person who has died has a tax preparer, they can be a tremendous asset here, as you’ll need to file taxes not only for the deceased but also possibly the estate as well (but only if the estate was over $5 million). Smaller estates may owe a separate tax, but that all depends on where the person lived or owned property.

Distribute Assets

When all debts and taxes are paid and probate is finally closed, your final job is to distribute the assets among beneficiaries. Then you can breathe a sigh of relief because your job is finally done!

So ends our closer look at how to settle an estate! Should you need any assistance, contact Scott Counsel today and speak with our Estate Planning Attorneys.

How To Settle An Estate (Part 1)

In this article, our New Jersey estate planning attorney will explain how to settle an estate. Please note, however, that this article will only cover the first six items. So, without further ado, let’s jump in and get started!

Find the Will

A will is an important thing to have, but you cannot do your job as executor until you find it. Sometimes that’s an easy task, and for others, it’s not. It’s a very important document, and chances are good that the person will have kept it somewhere safe. Look everywhere you can to find it.

File The Will in Probate Court

So, you found the will, now what? You’ll want to file it with the local probate court, but make sure to give them the original while still retaining a copy for yourself. Even if you don’t think you’ll need to deal with probate hearings, you must still file the will with the court.

Notify Agencies and Businesses of the Death

This includes:

  • The post office
  • Utility companies
  • Credit card companies
  • Banks, and
  • Other businesses the deceased may have had an account with.

You’ll also want to notify any agency through which the deceased was receiving any benefits (like the Social Security Administration). The faster you do, the faster any payments can be stopped and you don’t have to worry about giving money back that the estate isn’t entitled to. And less hassle is always good.

Inventory Assets and Get Appraisals

If you’re going to go through probate, you’ll need a comprehensive list of all the stuff the deceased person owned. Also, it can help you to better keep track of valuables and decide how you’re going to transfer the different items, divide property among beneficiaries who get equal shares, and determine whether or not the estate will owe any state or federal estate taxes.

Determine Whether or Not You Need Probate

In order to do this, you’ll need to figure out the value of all the property that is subject to the probate process, determine how title is held, and learn the rules on what estates can qualify for simpler procedures. It would also be wise to hire an attorney to help with any probate paperwork or help to solve any problems between beneficiaries and creditors.

Coordinate with a successor trustee

If the deceased has left both a will and a living trust, and lots of people do, you’ll need a partner who can be in charge of any trust assets (i.e. the successor trustee). As we saw in another article, a will and trust are similar in a lot of ways, but the major difference is that trust property isn’t required to go through the probate process like things that are named in the will. It can go directly to the people who inherit it! To learn more about how to settle an estate, click here to read part 2.

A Closer Look at Pay-On-Death Accounts and Retirement Accounts

couple learning about pay-on-death account

In the “Avoiding Probate” series, we took a look at the many ways a person can avoid the probate process altogether if he or she so chooses. For your convenience, we’ve linked those articles for you. You can find part 1, part 2, and part 3.

In this article, we’ll take a closer look at one of those ways: Pay-On-Death Accounts and Retirement Accounts.

Pay-On-Death Accounts

These types of accounts are one of the easiest ways to keep even large sums of money out of probate. All you need is to fill out a simple form, which your bank can provide, and name the person you want to inherit the money you have in the account at the time of your death.

It should be noted that, for as long as you are alive, the person you name to inherit the money in such an account has no rights to it. You have full control, and can spend the money, name someone different, or even close the account entirely.

Upon your death, the beneficiary needs only to go to the bank, show the proof of your death, as well as his or her identity, and finally collects whatever funds remain in the account. As such, the probate court is not involved at all.

Also, if you and your spouse share a joint account, when the first spouse dies, the funds most likely will transfer to the survivor, without having to involve the probate court. If, however, you decide to add in a POD designation, it will only take effect upon the death of the second spouse.

Retirement Accounts

Upon opening a retirement account, like an IRA or 401(k), the required forms will ask you to provide a beneficiary for the account. At the time of your death, any funds that remain in the account do not have to go through the probate process; any beneficiary you name can then claim the money directly from the account custodian. Any surviving spouse also has more options to consider when withdrawing the money than other beneficiaries.

For example, if you are single, you have the right to choose whomever you’d like to designate as a beneficiary. If you are married, however, the spouse can inherit some (and in some cases all) of the money.

Call our New Jersey Probate Lawyers for Help

So there you have it, a closer look into POD accounts and retirement accounts, and the options you have when considering whether or not to avoid the probate process entirely. The New Jersey Probate Attorneys at Scott Counsel have a long-standing history of guiding his clients through the probate process. If you have any questions, contact us online or by phone.